Exhibit 10.33
-------------
Schedule of Definitions
This Schedule of Definitions is the "Schedule of Definitions" referred to in and
-----------------------
incorporated by reference under the Management Agreement, Services Agreement,
and Trademark License Agreements (as such agreements are defined below).
Whenever the phrase "this agreement" is used below, such phrase refers to the
particular agreement under whose terms this Schedule of Definitions is being
applied in that instance. If citations to sections or exhibits of different
agreements are included in a definition, the citation to the particular
agreement under whose terms this Schedule of Definitions is being applied
controls to the exclusion of the citations to different agreements.
The following words and phrases used in this agreement have the following
meanings:
"Addendum" means any addendum attached to this agreement that contains the
amendments to this agreement; such Addendum is expressly incorporated as a part
of this agreement.
"Agent" has the meaning set forth in Section 3.1 of the Sprint Spectrum
Trademark and Service Mark License Agreement or Section 3.1 of the Sprint
Trademark and Service Mark License Agreement.
"Arbiter" has the meaning set forth in Section 12.1.3 of the Management
Agreement or Section 5.1.3 of the Services Agreement.
"Available Services" means those categories of services listed on Exhibit 2 .1.1
--------------
to the Services Agreement (as the same may be amended from time to time by
Sprint Spectrum and made available to Manager under the terms of the Services
Agreement).
"Available Services and Fees Schedule" means that schedule set forth on Exhibit
-------
2.1.1 to the Services Agreement, which sets forth the Available Services offered
-----
from time to time and the fees charged for such Available Services.
"Bankruptcy" means, for the purposes of the Trademark License Agreements, either
a Voluntary Bankruptcy or an Involuntary Bankruptcy.
"Brands" means the Sprint PCS Brands and the Sprint Brands.
"BTA" means a Basic Trading Area for which a Basic Trading Area (BTA) license is
issued by the FCC.
"Build-out Plan" means the plan agreed upon by Manager and Sprint PCS, along
with any modifications and updates to the plan, respecting the construction and
design of the Service Area Network, a copy of which is attached as Exhibit 2.1
-----------
to the Management Agreement.
"Business Day" means a day of the year that banks are not required or authorized
to close in the State of New York.
"Cancelled Service" has the meaning set forth in Section 3.2 of the Services
Agreement.
"CDMA" means code division multiple access.
"Change of Control" has the meaning set forth in Section 17.15.3 of the
Management Agreement.
"Collected Revenues" has the meaning set forth in Section 10.4 of the Management
Agreement.
"Confidential Information" means all Program Requirements, guidelines,
standards, and programs, the technical, marketing, financial, strategic and
other information provided by each party under the Management Agreement,
Services Agreement, and Trademark License Agreements, and any other information
disclosed by one party to the other party pursuant to the Management Agreement,
Services Agreement, and Trademark License Agreements that is not specifically
excluded by Section 12.2 of the Management Agreement. In addition to the
preceding sentence, "Confidential Information" has the meaning set forth in
Section 3.1 of the Sprint Spectrum Trademark and Service Mark License Agreement
or Section 3.1 of the Sprint Trademark and Service Mark License Agreement.
"Controlled Related Party" means the Parent of any Person and each Subsidiary of
such Parent. As used in Section 1.2 and Article 3 of the Sprint Spectrum
Trademark and Service Mark License Agreement or Section 1.2 and Article 3 of the
Sprint Trademark and Service Mark License Agreement, the term "Controlled
Related Party" will also include any Related Party of a Person that such Person
or its Parent can directly or indirectly unilaterally cause to take or refrain
from taking any of the actions required, prohibited or otherwise restricted by
such Section, whether through ownership of voting securities, contractually or
otherwise.
"Default Rate" means the rate per annum (computed on the basis of the actual
number of days elapsed in a year of 365 or 366 days, as applicable), compounded
monthly, equal to the Prime Rate (adjusted as and when changes in the Prime Rate
occur) plus five percent (5 %).
"Disaggregated License" means that portion of the License that Manager may or is
required to purchase under Section 11 of the Management Agreement from Sprint
PCS under certain circumstances, after Sprint PCS' receipt of FCC approval of
the necessary disaggregation and partition, which portion comprises no less than
the amount of spectrum sufficient to operate one duplex CDMA carrier (including
the required guard bands) within the PCS Spectrum, and no more than 10 MHz of
the Spectrum (at Manager's designation) covering the Service Area, and which
includes the frequencies then in use in the Service Area Network and, if
applicable, adjacent frequencies, so long as such frequencies in the aggregate
do not exceed 10 MHz.
"Dispute Notice" has the meaning set forth in Section 12.1.3 of the Management
Agreement or Section 5.1.3 of the Services Agreement.
"Dispute Notice Date" has the meaning set forth in Section 12.1.3 of the
Management Agreement or Section 5.1.3 of the Services Agreement.
2
"Encumbrances" has the meaning set forth in Section 5.1(a) of the Sprint
Spectrum Trademark and Service Mark License Agreement or Section 5.1(a) of the
Sprint Trademark and Service Mark License Agreement.
"Entire Business Value" has the meaning set forth in Section 11.7.3 of the
Management Agreement.
"Event of Termination" means any of the events described in Section 11.3 of the
Management Agreement. For the purposes of the Sprint Spectrum Trademark and
Service Mark License Agreement only, "Event of Termination" has the meaning set
forth in Section 13.2 of that agreement. For the purposes of the Sprint
Trademark and Service Mark License Agreement only, "Event of Termination" has
the meaning set forth in Section 13.2 of that agreement.
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
"Financial Lender" means any and all of those commercial and financial
institutions that provide material credit to Manager for the purpose of
assisting Manager with the fulfillment of its obligations and duties under this
agreement.
"fixed wireless local loop" has the meaning set forth in Section 2.4 of the
Management Agreement.
"home service area" means the geographic area within which a customer can make a
local call on the customer's PCS phone (i.e., the customer does not incur an
extra charge).
"Inbound Roaming" means calls placed by a non-Sprint PCS Network customer on the
Sprint PCS Network.
"Indemnitee" and "Indemnitor" have the meanings set forth in Section 14.3.1 of
the Management Agreement or Section 6.3.1 of the Services Agreement.
"Initial Term" has the meaning set forth in Section 11.1 of the Management
Agreement.
"Involuntary Bankruptcy" has the meaning set forth in Section 11.3.7 of the
Management Agreement.
"Law" means all laws (statutory or otherwise), ordinances, rules, regulations,
bylaws, Orders and codes of all governmental and regulatory authorities, whether
United States Federal, state or local, which are applicable to the Sprint PCS
Products and Services.
"License" means the PCS license(s) issued by the FCC described on the Service
-------
Area Exhibit to the Management Agreement.
------------
3
"Licensed Marks" means the trademarks and service marks referred to in the
Recitals section of the Trademark License Agreement under whose terms this
definition is being applied, and such other marks as may be adopted and
established under said agreement from time to time.
"Licensee" has the meaning set forth in the introductory paragraph to the
particular agreement under whose terms this definition is being applied.
"Licensor" has the meaning set forth in the introductory paragraph to the
particular agreement under whose terms this definition is being applied.
"local calling area" means the geographic area within which a customer can make
a local call on the customer's PCS handset without incurring a long distance
charge.
"Loss" means any and all damage, loss, liability, claim, out-of-pocket cost and
expense, including reasonable expenses of investigation and reasonable
attorneys' fees and expenses, but excluding consequential or special damages.
"Management Agreement" means that certain Sprint PCS Management Agreement
executed by Manager and Sprint PCS and any documents incorporated by reference
in said agreement.
"Manager" means the party to this agreement as indicated in the introductory
paragraph of this agreement.
"Manager's Products and Services" means all types and categories of wireless
communications services and associated products that are offered by Manager in
the Service Area under Section 3.2 of the Management Agreement.
"Marketing Communications Guidelines" means the guidelines issued by Sprint or
Sprint PCS in connection with the marketing, promotion, advertising,
distribution, lease and sale of Sprint PCS Products and Services.
"MFN pricing" or "Most Favored Nation pricing" means, with respect to resale,
the best local market price offered to any third party for the purchase of air
time on Manager's network including but not limited to any third party who may
use the air time for its own wireless communications services or resell the air
time, and, with respect to roaming, the lowest roaming charge of Manager to
other wireless carriers when their customers roam on the Service Area Network.
"MIN" means the 24-bit mobile identification number corresponding to the 7-
digit telephone number assigned to the handset, used for both billing and
receiving calls.
"MTA" means a Major Trading Area for which a MTA license is issued by the FCC.
"New Area(s)" means those portions of the Service Area not covered by the
then-existing Build-out Plan, that Sprint PCS or Manager decides should be
built-out.
4
"NPA-NXX" means as follows: "NPA" means numbering plan area, which is the area
code for a telephone number. "NXX" refers to the first three digits of a
telephone number, which identify the specific telephone company central office
that serves that number.
"Offer" means an offer received by Manager to sell substantially all of the
assets comprising or used in connection with the operation and management of the
Service Area Network or any portion of the Service Area Network.
"Offer Notice" means a written notice given by Manager to Sprint PCS that sets
forth in detail the terms and conditions of an Offer and the name and address of
the person or entity making the Offer.
"Offered Interest" means the assets that Manager proposes to sell pursuant to an
Offer.
"Operating Assets" means the assets Manager or its Related Parties owns and uses
in connection with the operation of the Service Area Network, at the time of
termination, to provide the Sprint PCS Products and Services. Operating Assets
does not include items such as furniture, fixtures and buildings that Manager or
its Related Parties use in connection with other businesses. Examples of
Operating Assets include without limitation: switches, towers, cell sites,
systems, records and retail stores.
"Operational Level of Sprint PCS" means the average operational level of all the
service area networks operated by Sprint PCS and its Related Parties without the
use of a manager, as measured by Sprint PCS, unless the operational level, as
measured by Sprint PCS, of all of the service area networks operated by Sprint
PCS and its Related Parties without the use of a manager that are contiguous to
the Service Area are below the national average, in which case "Operational
Level of Sprint PCS" means the average operational level of those contiguous
service area networks.
"Order" means any order, writ, injunction, decree, judgment, award or
determination of any court or governmental or regulatory authority.
"Other Managers" means any person or entity with which Sprint PCS has entered
into an agreement similar to this agreement under which the person or entity
designs, constructs and manages a service area network and offers and promotes
Sprint PCS Products or Services.
"Outbound Roaming" means calls placed by a Sprint PCS Network customer on a
non-Sprint PCS network.
"Parent" means, with respect to any Person, the ultimate parent entity (as
determined in accordance with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976 and the rules and regulations promulgated thereunder) of such Person;
except that if such ultimate parent entity is an individual, the Parent will be
the highest entity in the ownership chain from the ultimate parent entity to and
including such Person that is not an individual.
5
"parties" means, with respect to the Management Agreement, Sprint PCS and
Manager. For the purpose of the services Agreement only, "parties" means Sprint
Spectrum and Manager. Sprint is not a party to the Management Agreement, except
to the limited extent described on the signature page executed on behalf of
Sprint. For the purpose of the Trademark License Agreements only, "parties"
means Licensor and Licensee.
"PCS" means a radio communication system authorized under the rules for
broadband personal communications services designated as Subpart E of Part 24 of
the FCC's rules, including the network, marketing, distribution, sales, customer
interface, and operations functions relating thereto.
"PCS Spectrum" means the range of frequencies that Sprint PCS is authorized to
use under the License.
"Permitted Assignee" means any assignee of the rights and obligations of
Licensee pursuant to an assignment consented to in writing by Licensor, in its
sole discretion, in accordance with Section 14.1 of the Sprint Spectrum
Trademark and Service Mark License Agreement or Section 14.1 of the Sprint
Trademark and Service Mark License Agreement, or any subsequent permitted
assignee of any such permitted assignee.
"Person" means any individual, partnership, limited partnership, limited
liability company, corporation, trust, other business association or business
entity, estate, or other entity.
"pops" means the population covered by a license or group of licenses. Unless
otherwise noted, as used in the Management Agreement, pops means the most recent
Xxxx-XxXxxxx Population Survey estimate of the population of a geographic area.
"Premium and Promotional Items" means all items, including clothing, memorabilia
and novelties, used to display the Licensed Marks for the purpose of promoting
the awareness, sale or image of the Sprint PCS Products and Services; provided,
however, that Premium and Promotional Items does not include marketing and
advertising materials prepared by Licensee that are subject to the Marketing
Communications Guidelines (e.g. printed materials such as bill stuffers,
brochures and similar materials).
"Prime Rate" means the rate announced from time to time by The Chase Manhattan
Bank, or its successor(s), as its prime rate.
"Program Requirements" means the standards, guidelines and programs established
by Sprint PCS from time to time regarding the operation and management of the
Service Area Network and the Sprint PCS business operated using the Service Area
Network, including the Program Requirements set forth in Sections 4.1,4.2,4.3,
7.2 and 8.1 of the Management Agreement. Sprint PCS may also implement Program
Requirements respecting a voluntary resale program, as defined in Section 3.5.2
of the Management Agreement. "Quality Standards" has the meaning set forth in
Section 2.1(a) of the Sprint Spectrum Trademark and Service Mark License
Agreement or Section 2.1(a) of the Sprint Trademark and Service Mark License
Agreement.
6
"Xxxx-XxXxxxx Population Survey" means the most recent population survey
published by Xxxx-XxXxxxx or, if Xxxx-XxXxxxx no longer publishes the surveys,
then the most recent population survey published by any successor organization
to Xxxx-XxXxxxx or, if no such organization exists, an organization selected by
Sprint PCS that provides surveys similar to the Xxxx-XxXxxxx surveys.
"Receiving Party" has the meaning set forth in Section 3.1 of the Sprint
Spectrum Trademark and Service Mark License Agreement or Section 3.1 of the
Sprint Trademark and Service Mark License Agreement.
"Related Equipment" means customer-controlled equipment for use in connection
with the Sprint PCS Products and Services including telephones, wireless
handsets and related accessories, PCMCIA cards, "smart" cards, PDA's, PBX's,
set-top boxes and data terminals.
"Related Party" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with the Person. For purposes of the
Management Agreement, Sprint Spectrum, SprintCom, American PCS Communications,
LLC, PhillieCo Partners I, L.P., and Xxx Communications PCS, L.P. will be deemed
to be Related Parties. For purposes of this definition, the term "controls"
(including its correlative meanings "controlled by" and "under common control
with") means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Restricted Party" has the meaning set forth in Section 3.1 of the Sprint
Spectrum Trademark and Service Mark License Agreement or Section 3.1 of the
Sprint Trademark and Service Mark License Agreement.
"Selected Services" means those Available Services selected by Manager to be
provided by Sprint Spectrum under Section 2.1 of the Services Agreement. An
Available Service will not be treated as a Selected Service until Sprint
Spectrum begins providing that service.
"Services Agreement" means that certain Sprint PCS Services Agreement executed
by Manager and Sprint Spectrum and any documents incorporated by reference in
said agreement.
"Service Area" means the geographic area described on the Service Area Exhibit
--------------------
to the Management Agreement, except that the term does not include any New Areas
that Manager chooses not to build out.
"Service Area Network" means the network and business activities managed by
Manager under the Management Agreement in the Service Area under the License.
"Services Agreement" means that certain Services Agreement entered into between
Manager and Sprint Spectrum concurrently with the execution of the Management
Agreement.
7
"Siting Regulations" means:
FCC regulations governing tower siting, lighting, marking, monitoring, and
reporting of lighting malfunctions as set forth in 47 CFR (S)(S)17.1 through
17.58, and as may be amended;
FAA regulations governing tower siting, lighting, marking, monitoring, and
reporting of lighting malfunctions as set forth in 14 CFR (S)(S)77.1 through
77.75, and as may be amended;
FCC land use regulations as set forth in 47 CFR (S)(S)1.1301 through 1.1319, and
as may be amended; and
FCC radio frequency exposure regulations as set forth in 47 CFR (S)(S)1301
through 1.1319, and as may be amended.
"spectrum" has the same meaning as PCS Spectrum.
"Sprint" means Sprint Communications Company, L. P., a Delaware limited
partnership.
"Sprint Brands" means the "Licensed Marks" as that term is defined under the
Sprint Trademark and Service Mark License Agreement.
"Sprint PCS" means any or all of the following Related Parties who are License
holders and signatories to the Management Agreement: Sprint Spectrum L.P., a
Delaware limited partnership, SprintCom, Inc., a Kansas corporation, PhillieCo
Partners I, L.P., a Delaware limited partnership, Xxx Communications PCS, L.P.,
a Delaware limited partnership, and American PCS Communications, LLC, a Delaware
limited liability company. Each entity listed above is a Related Party to each
of the other listed entities.
"Sprint PCS Communications Policies" means the policies established in
accordance with Section 6.4 of the Management Agreement with respect to public
relations development, maintenance and management, as they may be amended from
time to time by Sprint PCS in accordance with the terms of the Management
Agreement.
"Sprint PCS Customer Service Program Requirements" means the program established
in accordance with Section 8.1 of the Management Agreement with respect to
customer service development, maintenance and management, as it may be amended
from time to time by Sprint PCS in accordance with the terms of the Management
Agreement.
"Sprint PCS Customer Service Standards" means those customer service standards
developed by Sprint PCS with respect to customer service and maintenance as
described in Section 8.1 of the Management Agreement, as it may be amended from
time to time by Sprint PCS in accordance with the terms of the Management
Agreement.
"Sprint PCS Insurance Requirements" means the insurance requirements developed
by Sprint PCS as described in Section 12.3 of the Management Agreement, as they
may be amended from time to time by Sprint PCS.
8
"Sprint PCS National Accounts Program Requirements" means the program
established in accordance with Section 4.2 of the Management Agreement with
respect to national accounts development, maintenance and management, as it may
be amended from time to time by Sprint PCS in accordance with the terms of the
Management Agreement.
"Sprint PCS National or Regional Distribution Program Requirements" means any
distribution program established in accordance with Section 4.1 of the
Management Agreement, as it may be amended from time to time by Sprint PCS in
accordance with the terms of the Management Agreement, and entered into by
Sprint PCS or its Related Parties and a third-party distributor (for example, a
national chain of retail electronics stores) from time to time, under which the
third party will distribute, lease, or sell Sprint PCS Products and Services on
a national or regional basis. The term "distributor" means a reseller of Sprint
PCS Products and Services, or an agent of Sprint PCS authorized to sell Sprint
PCS Products and Services on behalf of Sprint PCS, or a person engaged in any
other means of wholesale or retail distribution of Sprint PCS Products and
Services.
"Sprint PCS Network" means the national wireless network and business activities
to be developed by Sprint PCS, Manager and Other Managers in the United States
and certain of its territories and possessions, which network includes the
Service Area Network.
"Sprint PCS Network Roaming and Inter Service Area Program Requirements" means:
the roaming program established in accordance with Section 4.3 of the Management
Agreement, as amended from time to time, to provide for customers from a carrier
not associated with the Sprint PCS NetWork to operate the customer's handset on
the Sprint PCS Network and for customers from the Sprint PCS Network (whether
customers of Sprint PCS, Manager or an Other Manager) to operate the customer's
handset on a network of a carrier not associated with the Sprint PCS Network,
and
the program established in accordance with Section 4.3 of the Management
Agreement, as amended from time to time, to provide for customers from one
Service Area on the Sprint PCS Network, whether managed by Sprint PCS, Manager,
or an Other Manager, to operate the customer's handsets and otherwise receive
seamless service, regardless of whether the customer makes its call to or from
the Sprint PCS Network and regardless of whether the customer is a customer of
Sprint PCS, Manager or an Other Manager.
"Sprint PCS Products and Services" means all types and categories of wireless
communications services and associated products that are designated by Sprint
PCS (whether now existing or developed and implemented in the future) as
products and services to be offered by Sprint PCS, Manager and all Other
Managers as the products and services of the Sprint PCS Network for fixed and
mobile voice, short message and other data services under the FCC's rules for
broadband personal communications services, including all local area service
plans. Sprint PCS Products and Services do not include wireline products
services, including local exchange service, wireline long distance service, and
wireline based Internet access.
9
"Sprint PCS Technical Program Requirements" means the operating and technical
performance standards established by Sprint PCS, in accordance with Section 7.2
of the Management Agreement, as amended from time to time, for the Sprint PCS
Network as they may be amended from time to time by Sprint PCS in accordance
with the terms of the Management Agreement.
"Sprint Spectrum" means Sprint Spectrum L.P., a Delaware limited partnership.
"Sprint Spectrum Brands" means the "Licensed Marks" as that term is defined
under the Sprint Spectrum Trademark and Service Mark License Agreement.
"Sprint Spectrum Trademark and Service Mark License Agreement" means that
certain Sprint Spectrum Trademark and Service Mark License Agreement executed by
Manager and Sprint Spectrum and any documents incorporated by reference in said
agreement.
"Sprint Trademark and Service Mark License Agreement" means that certain Sprint
Trademark and Service Mark License Agreement executed by Manager and Sprint and
any documents incorporated by reference in said agreement.
"SprintCom" means SprintCom, Inc., a Kansas corporation.
"Subsidiary" of any Person as of any relevant date means a corporation, company
or other entity (i) more than 50% of whose outstanding shares or equity
securities are, as of such date, owned or controlled, directly or indirectly
through one or more Subsidiaries, by such Person, and the shares or securities
so owned entitle such Person and/or Subsidiaries to elect at least a majority of
the members of the board of directors or other managing authority of such
corporation, company or other entity notwithstanding the vote of the holders of
the remaining shares or equity securities so entitled to vote or (ii) which does
not have outstanding shares or securities, as may be the case in a partnership,
joint venture or unincorporated association, but more than 50% of whose
ownership interest is, as of such date, owned or controlled, directly or
indirectly through one or more Subsidiaries, by such Person, and in which the
ownership interest so owned entitles such Person and/or Subsidiaries to make the
decisions for such corporation, company or other entity.
"Successor Notice" has the meaning set forth in Section 17.15 .2(d) of the
Management Agreement.
"Term" means during the term of the Management Agreement, including the Initial
Term and any renewal terms.
"Trademark and Service Mark Usage Guidelines" means the rules governing the
depiction and presentation of the Licensed Marks then generally in use by
Licensor, to be furnished by Licensor to Licensee (as the same may be amended
and updated from time to time by Licensor).
"Trademark License Agreements" means the Sprint Trademark and Service Mark
License Agreement and the Sprint Spectrum Trademark and Service Mark License
Agreement.
10
"Voluntary Bankruptcy" has the meaning set forth in Section 11.3.7 of the
Management Agreement.
11
